Chapter 7 Flashcards
What are the different types of formalities.
Different types of formalities are:
• written and signed
• signed in front of a notary public
• registered at the deeds office.
When are formalities required?
The formalities can be required by the law or agreed to by the contracting parties themselves.
What are the two formalities of antenuptial contract required by law?
1) it must be notarially executed before the parties marry.
2) it must be registered within three months of the date of execution.
What happens when the antenuptial contract does not meet the formalities required by the law?
The contract is binding on the spouses, but not on any third parties.
What are the formalities of a contract for the transfer of immoveable property and a contract of suretyship? What happens if these are not satisfied?
The contracts must be written down and signed, if this formality is not met then the contracts will be void.
Explain an entrenchment clause.
An entrenchment, “no change clause”, provides that any subsequent changes to the contract must be in writing and signed by both parties to be valid.
Explain the requirement of certainty of performance in contracts.
It must be clear what performance is required in terms of the contract for the contracts to be valid. The contract must be:
Certain - state clearly OR
Acertainable - enable the person to decide what performance is required.
What is objective impossibility?
Objective impossibility means that the performance is impossible for anyone to perform.
Will a contract be valid if the performance is objectively impossible at the time the contract is concluded?
No.
True or false: A court can enforce a contract only if the contract is allowed by law. This is referred to as…?
True.
Legality of performance.
Name & describe the two kinds of illegality.
1) Statutory illegality - an agreement/ contract made invalid by parliamentary act.
2) Common law illegality - an agreement that is against public law policy.
What is a restraint of trade agreement?
A restraint of trade agreement is a clause in a contract that restricts a person’s ability to be employed or involved in a specific trade or business.
What happens when someone has performed in terms of a contract that is void because it is illegal?
They cannot enforce the contract or recover any performance already given.
